State v. Carroll

101 N.W. 317 | N.D. | 1904

Engerud, J.

This is an appeal by defendant from a judgment rendered against him in bastardy proceedings. The appellant contends that the judgment should be reversed and the proceedings dismissed because the district court had no jurisdiction, or, if the objection to the jurisdiction is not well taken, a new trial should be ordered because the trial court erred in denying defendant’s motion for a continuance.

The record discloses that a complaint in statutory form was presented to the justice, showing that the defendant was the father of the complaining witness’ bastard child; that a warrant in due form was thereupon issued, by virtue of which warrant the defendant was apprehended and brought before the magistrate; that the defendant then furnished an undertaking for his appearance in district court to answer the complaint, which undertaking was accepted by the justice, and defendant released from custody. All the original papers, properly identified, together with a certified transcript of his proceedings, were transmitted by the justice to the district court. The proceeding was placed on the calendar for trial at the next term, and when the case was reached for trial the defendant appeared by counsel, and moved to dismiss the proceeding on the ground that the trial court had not acquired jurisdiction. The specific objection to the jurisdiction urged by defendant’s counsel here and in the trial court is that the justice’s transcript of his proceedings affirmatively shows that the justice had made no order or judgment holding the defendant to appear for trial in the district court.

The objection is without merit. The justice’s transcript is in proper form. It is addressed to the clerk of the district court of Ward county, and purports to set forth all proceedings, and to have annexed thereto all papers filed in the case of the State of North Dakota against Leslie R. Carroll, before John W. Crow, justice of the .peace of Ward county, and bears the signature of said justice. It contains “a full, true and correct copy of all docket entries.” These entries, after showing the making and filing of the complaint and the issuance of the warrant, read as follows: “Saia defendant, Leslie R. Carroll, was placed under arrest and brought before me and was placed under $500 bonds to appear from time to time before the district court until his case is disposed of.” The transcript is verified by an affidavit subscribed by the justice and sworn to before a notary public. The original complaint, warrant and undertaking are attached to the transcript. Appellant asserts that the fact that the name of the justice does not appear below the docket entries on the transcript demonstrates that the justice did not sign the page or pages of the original docket on which these entries appear. Hence the conclusion is deduced that there was no order or judgment by the justice admitting the defendant to bail, because such order or judgment could only be made in writing entered on the docket and signed by the justice. Our attention has not been called to any statute or rule of law which requires the justice in a bastardy proceeding to attach his signature to the docket entries. Section 7843, Rev. Codes 1899, requires the magistrate to transmit to the district court the undertaking given by the defendant and all the other papers in the case, “together with a transcript of his [the magistrate’s] proceedings.” The statute does not require tire justice to transmit an exact reproduction of the page or pages of his docket on which the entries appear. A copy of the docket entries showing the proceedings had is sufficient.. When the defendant is brought before the magistrate in a bastardy proceeding, the defendant’s rights and the magistrate’s powers and duties are prescribed by section 7842, Rev. Codes 1899. The only right on the part of the defendant is to furnish bail acceptable to the magistrate. The sole power and duty of the magistrate is to admit the defendant to bail, or commit him to custody in default of bail, to await trial in the district court. In this case the record shows that the defendant furnshed-bail satisfactory to the magistrate. The bail bond itself, as well as the transcript of the proceedings before the justice, show that the bail furnished was satisfactory to the magistrate, both in amount and sufficiency of sureties. The defendant having availed himself of his right to furnish satisfactory bail, there was no order, finding or judgment required of the magistrate except to approve the undertaking. The district court acquired complete jurisdiction over the person of the defendant and, the subject-matter of the proceeding when the transcript and accompanying papers were filed with the clerk, and therefore the objection to the jurisdiction was properly denied. .

On the day before the trial the defendant applied for a continuance on account of the absence of an alleged witness. The trial court denied the motion, and we think the ruling was eminently right. The only showing in support of the motion was the uncorroborated affidavit of the defendant, in which he stated that he was “informed and believed” that the absent witness could and would give certain testimony. The sources of the affiant’s information and the grounds for his belief are not disclosed. The testimony of the absent witness would incriminate the witness himself, and, even if the witness waived his privilege ,and his testimony were fully credited, it would only tend to lessen the weight and credibility of the evidence for the prosecution.

(101 N. W. 317.)

The judgment appealed from is affirmed.

All concur.